Friday, May 27, 2011

Get-tough laws erode functions of justice

A critical point ... the slow but steady erosion of judicial discretion.

The government's proposal to create mandatory life prison sentences specifically for people who murder police officers has ''thin end of the wedge'' stamped all over it.

Already NSW law says that the standard non-parole period for murder, where the victim is a police officer, is 25 years. The same standard non-parole period also applies in circumstances where in their line of work the murdered victim is an emergency service worker, a correctional officer, a judge, a council law enforcement officer, health worker, teacher, community worker or any public official exercising public or community functions.

That does not mean that a judge exercising discretion cannot impose a real ''life means life'' sentence for a particularly heinous murder. What the O'Farrell government is proposing is to remove the discretion of judges to impose lesser sentences than the standard non-parole period, which depend on the objective seriousness of the crime.

What's to stop the government pandering to radio commentators and public indignation by pressing further and removing the discretions and imposing brick-them-for-life sentences where murdered victims are teachers, community workers, council parking officers, and so on?

What it means, in effect, is that a foolish 19-year-old who, in a drug-crazed moment, kills an arresting police office will never get out of jail, regardless of the degree of subsequent redemption.

The Attorney-General, Greg Smith sought to bolster the case with a generous dollop of speciousness: ''The murder of a police officer is a direct attack on our community and warrants exceptional punishment. It sends a serious message of support to our police, but I hope it is never used.''

The slow but steady erosion of the judicial discretion has reached a critical point. Our constitution provides that all courts that exercise federal jurisdiction, and that includes the state courts, have an institutional integrity. The government of the day cannot usurp judicial functions.

The proposed police-murder sentencing law is being foreshadowed at a time when the High Court is about to dip its toes into these waters again. The week after next, keep an eye out for Jihad Mahmud's case because it challenges on constitutional grounds the right of parliament to impose standard non-parole periods for offences that are found to be ''in the middle of the range of objective seriousness''.

Sentencing procedure for a wide range of crimes - wounding, sexual assault, robbery, breaking, drug offences, murder, firearms, rebirthing cars, and so on - is ordained by parliament. For example, if you are found guilty of robbery, with arms, and wounding, legislation says that the standard non-parole period is seven years. That seven years applies to offences that the judge thinks lie ''in the middle of the range of objective seriousness'' for that crime.

If there are aggravating or mitigating factors the sentence can be adjusted accordingly. But what standard non-parole periods do is ''anchor'' sentencing and lock prisoners into a grid of legislatively mandated levels of punishment.

That is what Mahmud is challenging in the High Court, under chapter 3 of the constitution, which guarantees the independence of the judiciary. Alexander Street, SC, of the Sydney bar, a conspicuously successful chapter 3 advocate, has saddled up for the case, along with the criminal defence barrister Gabriel Wendler.

Street took the famous tea-bagging case to the High Court, in which a member of the navy was accused of placing his testicles on the forehead of a sleeping sailor. Brian Lane was charged with various offences to be heard by the Australian Military Court. Street successfully challenged the constitutionality of that court to hear the case because the AMC was required to exercise the judicial power of the Commonwealth without being properly set-up as a chapter 3 court.

Mahmud was almost a stereotypical offender when in 2009 at the age of 28 he was sentenced in the District Court for drug and firearms offences. He grew up in Mount Druitt and finished his school certificate at Granville Boys High. His parents had a long and acrimonious divorce when he was about nine years old.

He was tossed between his mother and father and by the age of 13 he was using illegal drugs, including cannabis. By 16 he had graduated to amphetamines, ecstasy and cocaine. He continued to have problems at home. He had disjointed periods of employment, as a kitchen hand at KFC, as a labourer with Miami Pools, as a brickie's labourer and a storeman at a supermarket. Interestingly, he qualified for a certificate at a course for security guards. He did a bit of time in 2005 for firearms offences.

In January 2008 the police found him driving home with a loaded pistol in the boot of his car. They searched his house and found more guns and 1.78 kilograms of methylamphetamine in the fridge, with a purity of between 2 and 2.5 per cent. He said he was minding the drugs for someone else and that his collection of weapons was explained by his gun fetish. Mahmud pleaded guilty to the drug and firearms offences.

Acting Judge Graham at the District Court found the objective criminality for both counts less than the mid-range and accordingly sentenced Mahmud to six years and six months non-parole for the drugs and three years and six months non-parole for the guns. The Court of Criminal Appeal jacked up the overall sentences by 80 per cent, because it thought the standard non-parole period had not been properly considered.

Mahmud's argument is the legislated anchor point requires the court to exercise its sentencing function in a prescribed way, thereby ''impermissibly interfering with an essential and exclusive'' constitutional function of the judges. It will be interesting to see how this pans out. If the application of fixed standard non-parole periods for offences in the middle of the range of ''objective seriousness'' is a problem, just how much bigger a problem is mandatory life sentences with zero judicial discretion?